) CAUSE NO. 1:14-cv-525-SEB-DKL
On April 21, 2014, the Court ordered Plaintiff to show cause why all defendants but
one should not be dropped from this Cause for misjoinder. Rule 20(a)(2) of the Federal
Rules of Civil Procedure provides:
Persons . . . may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions; and
(B) any question of law or fact common to all defendants will arise in
the action.
Fed. R. Civ. P. 21 provides:
Misjoinder of parties is not a ground for dismissing an action. On
motion or on its own, the court may at any time, on just terms, add or drop
a party. The court may also sever any claim against a party.
In his return to the order to show cause, Plaintiff argues that the Court should give Rule
20(a) a broad scope because its purpose is to avoid multiple lawsuits and, thus, improve
judicial efficiency and, therefore, the terms “transaction” and “occurrence” should be
Case 1:14-cv-00785-TWP-DKL Document 1 Filed 05/15/14 Page 1 of 5 PageID #: 61
Provided by:
Overhauser Law Offices LLC
interpreted. He contends that “all ‘logically related’ events entitling a person to institute
a legal action against another generally are regarded as comprising a transaction or
occurrence.” He argues that joinder of all Defendants in this Cause is proper under Rule
20(a) because he asserts a right to joint, several, or alternative relief against all defendants
and that this right to relief respects or arises out of the same transaction, occurrence, or
series of transactions or occurrences:
All Defendants meet the first prong a “series of transactions or occurrences”
because it is alleged each and every Defendant downloaded the Indianapolis
photo on to their own website. . . . Having interviewed dozens of the
Defendants nearly all say they goggled [sic] “Indianapolis Skyline [sic] and
selected the Indianapolis photo to download to their site which is a “series
of transactions or occurrences.” Thud [sic] there is no question that all
defendants meet the first prong and no Defendant will say otherwise.
(Plaintiff’s Response to Order To Show Cause [doc. 10] (“Return”) at 4.) Plaintiff then argues
that there are questions of law and fact common to all Defendants that will arise in this
action. He relies on his allegations that all Defendants violated federal copyright and
Indiana theft laws and then identifies sixteen specific questions of fact or law raised by his
Plaintiff asserts federal copyright, federal unfair competition, and state theft claims
against seventeen
defendants for their commercial use of one of two photographs taken
by Plaintiff without his permission, without proper attribution, and without paying for the
An eighteenth party, “WRTV”, appears in the complaint’s caption, Complaint [doc. 1] at 1, but, in
his Return, Plaintiff states that WRTV is “not currently a defendant” and “was inadvertently not deleted
from the caption;’ Return at 1 n. 2.
Case 1:14-cv-00785-TWP-DKL Document 1 Filed 05/15/14 Page 2 of 5 PageID #: 62
use. The complaint alleges that “[e]ach defendant, independently of each other, created or
had created a website to promote and advertise the business of each Defendant,” Complaint
[doc. 1] ¶ 31, and that Plaintiff discovered that “the website [of] each of these Defendants
contained [one of the photographs],” id. ¶ 32. Except for defendants Cameron Taylor and
Taylor Computer Solutions, the Complaint contains no allegation that any defendant acted
in concert with another defendant in appropriating Plaintiff’s photographs and it does not
allege any transaction, occurrence, or series of transactions or occurrences in which two or
more defendants participated.
To properly join all Defendants, Plaintiff’s claims against them must respect or arise
out of the “same” occurrence or the “same” series of occurrences, Fed. R. Civ. P.
20(a)(2)(A); in other words, the copyright violations alleged by Plaintiff must constitute a
single occurrence or a single series of occurrences. See Wright, Miller, & Kane, Federal
Practice and Procedure, Civil 3rd § 1653 at 409 (2001). While Plaintiff alleges that the same
copyright was infringed by each defendant and the same types of fact questions will likely
arise, he alleges no other logical relationship among the defendants or their acts of
infringement, or any aggregate of identical operative facts or evidence
that justifies
Plaintiff appears to believe that if the same types of factual or legal questions will arise in each
claim against each defendant (e.g., how did the defendant find Plaintiff’s photograph, what did the
defendant know about the photograph’s copyright status, did the defendant make commercial use of the
photograph, and did the defendant pay for the use of the photograph), then the logical-relationship
and/ or overlapping-evidence tests are satisfied. But it is not the types or categories of facts or evidence
that must be the same or common for each defendant, but the actual fact or evidence in question. That
Defendant A found Plaintiff’s photograph through a Google search, downloaded it, and then uploaded it
to its commercial website without paying for the use has no relationship to or effect on Defendant B’s
liability to Plaintiff.
Case 1:14-cv-00785-TWP-DKL Document 1 Filed 05/15/14 Page 3 of 5 PageID #: 63
requiring Defendants to jointly defend against his claims. See In re EMC Corp., 677 F.3d
1351, 1357-59 (Fed. Cir. 2012). Rather, he alleges that Defendants independently engaged
in separate and distinct acts of copyright infringement that happened to involve the same
photograph. Such unrelated claims against unrelated defendants belong in different suits,
in part to ensure that plaintiffs pay the required filing fees. See George v. Smith, 507 F.3d
605, 607 (7th Cir. 2007).
Therefore, the Court finds that there is misjoinder of defendants in this case and that
all but one defendant should be dropped from this Cause under Fed. R. Civ. P. 21. See
George, 507 F.3d at 607; Lester v. San Francisco Sheriff Dept., No. C 13-1120 WHA, Order
Denying Motion to Dismiss, 2013 WL 6326152 (N. D. Calif., Dec. 4, 2013); reFX Audio Software,
Inc. v. Does 1-141, No. 1:13-cv-940, Memorandum Opinion and Order, 2013 WL 5835704, *3
(N.D. Ill., Oct. 28, 2013); Simon v. Shawnee Correctional Center, Civil No. 13-521-GPM,
Memorandum and Order, 2013 WL 3463595, *2 (S.D. Ill., July 9, 2013). However, in order to
avoid statute-of-limitations consequences, district courts in this circuit have been instructed
to sever, rather than dismiss, claims and/ or parties as a remedy for misjoinder. Elmore v.
Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000).
Therefore, the Clerk of the Court is DIRECTED to sever all defendants other than
Diversified Vehicle Services from this Cause and to open separate Causes for each of the
severed defendants, except defendants Cameron Taylor and Taylor Computer Solutions
shall be joined in one Cause. The Clerk need not open a Cause for defendant WRTV as
Case 1:14-cv-00785-TWP-DKL Document 1 Filed 05/15/14 Page 4 of 5 PageID #: 64
Plaintiff has stated that it was inadvertently named. The Clerk shall send copies of this
Order to each of the defendants at the service addresses supplied by Plaintiff with his
summonses, together with notice to each defendant of that defendant’s new Cause
Number, for the purposes of answering and all further proceedings.
Plaintiff is ORDERED to file the required filing fee for each of the severed cases no
later than Monday, June 2, 2014.
SO ORDERED this date:
Richard N. Bell
Bell Law Firm
10042 Springstone Road
McCordsville, Indiana 46055

Denise K. LaRue
United States Magistrate Judge
Southern District of Indiana

Case 1:14-cv-00785-TWP-DKL Document 1 Filed 05/15/14 Page 5 of 5 PageID #: 65